2026 INSC 496 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

(Arising out of SLP(C) No.31012 of 2025)

MARIETTA D’ SILVA .…. APPELLANT

VERSUS

RUDOLF CLOTHAN LACERDA & ORS. ….RESPONDENTS

J U D G M E N T

MANMOHAN, J.

1.Leave granted.

2.Present appeal has been filed challenging the impugned judgment and

order dated 23

rd

June 2025 passed by the High Court of Bombay in Civil

Revision Application No. 308 of 2019 whereby the High Court allowed the

revision application filed by Respondent No.1 and set aside concurrent findings

in the judgment dated 14

th

September, 2007 passed by Small Causes Court at

Bombay in Rent and Eviction Suit No. 411/861 of 1996 as also judgment and

order dated 25

th

July 2017 passed by the Appellate Bench of Small Causes Court

at Bombay in Appeal No. 677 of 2007. By virtue of the impugned judgment and

order passed by the High Court, the suit filed by the Appellant-Plaintiff No. 1

SLP(C) No.31012 of 2025 Page 1 of 25

seeking eviction of Respondent No.1 was dismissed and Appellant/Plaintiff No.

1 was directed to restore possession of the premises in question to Respondent

No.1.

FACTUAL BACKGROUND

3.Briefly stated, the material facts are that a 99-year lease of land was

granted by the St. Anthony’s Homes Cooperative Society Ltd. in favour of the

parents of Appellant-Plaintiff No.1. Upon the leased land, the parents

constructed the Memorare Building (“Suit Building”) situated at 16

th

Road,

Chembur, Bombay – 400071 comprising six flats (flat Nos.1-6). Five share

certificates dated 6

th

June 1959 were issued by the Cooperative Society to the

parents of the Appellant.

4.A sub-tenancy agreement dated 6

th

June 1962 was executed for flat No.2

(“Suit Premises”) by the father of the Appellant in favour of one Mr. Augustine

Lacerda (father of Defendant Nos.1-3 and grandfather of Respondent No.1

herein, who is the son of deceased Defendant No.1). Upon the death of Mr.

Augustine Lacerda on 7

th

December 1969, the sub-tenancy devolved upon his

widow, Mrs. Virginia Lacerda.

5.Subsequently, on 5

th

July 1987, the five share certificates were transferred

in favour of the joint names of Appellant-Plaintiff No.1 as well as her sister

Respondent No.2-Plaintiff No.2 and their family members –Defendant Nos.4-8.

6.Three months after the death of Mrs. Virginia Lacerda, an eviction suit

(later numbered as R.A.E. Suit No. 411/861 of 1996) was filed in July 1993

SLP(C) No.31012 of 2025 Page 2 of 25

with regard to the Suit Premises by Appellant-Plaintiff No.1 and Respondent

No.2-Plaintiff No.2 against the legal heirs of Mrs. Virginia Lacerda (i.e.

Defendant Nos.1-3). The suit was founded on grounds under Section 13(1)(g)

read with Section 13(2) [bona fide need of the landlord, coupled with greater

hardship]; Section 13(1)(l) [acquisition of alternative accommodation by the

tenant]; and Section 13(1)(k) [change of user] of Bombay Rents, Hotel and

Lodging House Rates Control Act, 1947 (“the Act”).

7.According to the Appellant-Plaintiff No.1, at the time of filing of the suit,

flat Nos.5-6 (which were the only flats available to the co-landlords) were

occupied by the parents of the Appellant-Plaintiff No.1. Appellant’s father

passed away on 24

th

February 1994 i.e. subsequent to the institution of the suit.

It is the case of the Appellant-Plaintiff No.1 that pursuant to an oral family

arrangement between the Appellant and her siblings all the five children were to

co-own all units as well as jointly contribute to the maintenance and up-keep of

the whole building, with flat Nos. 5 & 6 earmarked for the exclusive use of the

two sons only (Defendant Nos.6 and 8/Respondent No. 4 & 6 herein), while

Appellant/Plaintiff No.1 was to get exclusive use of flat No.2/ Suit Premises

upon eviction of the tenants.

8.During the pendency of the suit in 1996, the Appellant shifted to Mumbai

and temporarily resided with her mother in flat Nos.5 and 6, having no other

accommodation in the city.

SLP(C) No.31012 of 2025 Page 3 of 25

9.By judgment and decree dated 14

th

September 2007, the Small Causes

Court decreed the eviction suit in favour of Appellant–Plaintiff No.1, holding

that she had established her bona fide requirement and that alternative

accommodation was available to the tenants. The issue of comparative hardship

was also decided in favour of the Appellant. However, the claim of Respondent

No.2–Plaintiff No.2 was rejected on the ground that she was residing in Goa,

which finding was not challenged by her. The plea of change of user was

likewise rejected. The relevant portion of the Trial Court’s judgment is extracted

hereinbelow:

“14. …However, so far as the plaintiff No.1 is concerned, the defendant Nos. 1 and 2

unable to produce any material before the court which could positively indicate the fact

that the plaintiff No.1 has her own premises in Mumbai. Similarly, the evidence relating

to frequent transfer of the plaintiff No.1’s husband also not destroyed by the defendant

Nos. 1 and 2. The fact of other brothers are residing at Canada and USA does not

necessarily mean that they will not come to India whenever they intend to pay visit to

India. They could have also resided in their own premises and therefore, the story put

up by the plaintiff No. 1 relating to this particular fact is certainly believable. The fact

of the plaintiff No.1 residence in the suit premises is not at all denied by the defendants

and therefore, the plaintiff No.1’s need is sincere and honest. In this connection, it has

to be mentioned that in such a situation even the minor need of the landlord is sufficient

to pass the decree when the defendants have acquired alternate suitable

accommodation in Mumbai. The defendant No.1 was selling his own premises during

the pendency of the suit and this fact has not at all denied by the defendants. If this

being the position, it can hardly be said that the plaintiff No.1’s need is not sincere and

honest…

xxxx xxxx xxxx

17… it has fairly been admitted by the defendant No.2 that he is the owner of flat No.

F-129 at Madhuwana Society, Andheri (East), Mumbai-400058. The said flat consists

of hall, kitchen, bed room, w.c. and bath room and it admeasures 450 sq.ft. Similarly,

on page No.44 of the notes of evidence this witness conceded the fact that the defendant

No.3 is residing on the address of flat No.606, 6

th

floor, Ritik Rishi Complex, Holy

Cross Road, IC Colony, Borivali. These two admissions are itself sufficient to conceive

the fact that the defendant Nos.1 to 3 are not at all residing in the suit premises and as

such their hardship assumes no importance. The question remains only in respect of the

defendant No.2's hardship…

SLP(C) No.31012 of 2025 Page 4 of 25

…According to the plaintiffs, the defendant No.2 acquired alternate accommodation on

the address of D-82, Madhuwana Society, Andheri (E), Mumbai 400 058 and the

plaintiffs visited the said premises. The evidence led by the plaintiff so far as this

residence is concerned appears to be rather conceivable particularly in view of

evidence led by the defendant No.2 in his cross examination…

xxxx xxxx xxxx

19. His (Defendant No.2) evidence further shows that his sister, defendant No.3 was

occupying the said flat……

…His evidence further shows that he has entered with an agreement with Mr. Lancelot

C. D'Souza with regard to flat No. D-82 in Madhuwana Society. He signed the said

agreement dated 29.11.2002 (Ex.D) in the office of the society and the said agreement

has been admitted by defendant No.2…

…This particular transfer made in favour of Mr. Lancelot during the pendency of this

suit itself sufficient to conceive the fact that the said transfer in respect of flat No. D-82

was made by the defendant No.2 only with a view to defeat the present suit and nothing

else. As a matter of fact, instead of searching other accommodation, the defendant No.2

sold the said premises. Even apart from this fact, the consideration of Rs. 12 lakhs

could have been used or utilised for the purpose of purchasing other accommodation,

but the same was not done. Therefore, the fact remains that the defendant No.2 received

Rs.12 lakhs out of said transaction.

xxxx xxxx xxxx

23. …As a matter of fact, once the bona-fide need is proved, the question of relative

hardship become rather academic…

… But so far as the plaintiff No. 1 is concerned, it has been held that the defendants

unable to produce any material before the court which could positively show that the

plaintiff No.1 has her own premises in Mumbai…… Therefore, in my view, relative

hardship certainly tilts towards the plaintiff No.1 and not in favour of the defendants.

xxxx xxxx xxxx

25. In view of above reasoning. I hold that, the plaintiff-No.1 succeeded in proving that

she requires the suit premises for her own use and occupation and greater hardship

would be caused to her in the event of decree being refused. I therefore answer these

issues accordingly.

xxxx xxxx xxxx

28… Therefore, it is amply established before this court that the defendant Nos. 1 to 3

have acquired alternate suitable accommodation and they are not at all in need of the

suit premises.

10.The tenants aggrieved by the judgment and decree passed by the Small

Causes Court preferred an appeal bearing no. 677/2017 before the Appellate

Bench of the Small Causes Court in October 2007. The said appeal was

dismissed vide judgment dated 25

th

July 2017.

SLP(C) No.31012 of 2025 Page 5 of 25

11.Thereafter, Respondent No.1 instituted Civil Revision Application (ST)

No. 28304 of 2017 before the High Court of Bombay on 3

rd

October 2017,

assailing the judgment dated 25

th

July 2017 of the Appellate Bench. By the

impugned judgment dated 23

rd

June 2025, the High Court set aside the

concurrent decrees of the Courts below and directed restoration of possession of

the Suit Premises to Respondent No.1–tenant.

12.Aggrieved thereby, Appellant-Plaintiff No.1 has approached this Court by

way of the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT

13.Mr. Siddharth Bhatnagar, learned senior counsel appearing for Appellant–

Plaintiff No.1, submitted that the Appellant was a co-landlord of the Suit

Premises at the time of institution of the eviction suit, her name being jointly

reflected in the five share certificates of the Suit Building. He invited the

attention of this Court to the plaint, wherein the Appellant had specifically

averred as follows:-

“1. The Plaintiffs, along with Defendants Nos.4 to 8 are the landlords of the building

known as Memorare, situated at 16

th

Road, Chembur, Bombay 400071.

2.Mr. A. Cyprian O Lacerda was the tenant of Flat No.2 on the Ground Floor of the

aforesaid property of the Plaintiffs…..

4.The Plaintiffs seek to recover, from Defendant Nos.1-3, peaceful and vacant

possession of the suit premises on the following grounds:

a.The suit premises are reasonably and Bonafide required by the Plaintiffs for

their own use and occupation……”

14.It was urged that the Appellant was able to record her evidence only in

2004, by which time her father had passed away in 1994. In the intervening

period, she had joined her mother in flat Nos.5 and 6, owing to want of

SLP(C) No.31012 of 2025 Page 6 of 25

alternative accommodation in Mumbai and the necessity of educating her

children in the city, despite the protracted progress of the eviction suit. In her

affidavit of evidence, she explained that flat Nos.5 and 6 had since been allotted

to her brothers, who, though residing abroad, were expected to return to India

and occupy those flats. Thus, while the death of her father created temporary

space for her to reside with her mother, it did not defeat the bona fide

requirement pleaded in the plaint.

15.Learned senior counsel further contended that the Appellant had, in her

examination-in-chief, established both her status as co-landlord and her

entitlement to eviction under Section 13(1)(g) read with Section 13(2) and

Section 13(1)(l) of the Act. The relevant portion of her affidavit of examination-

in-chief is reproduced hereinbelow:-

“3. We, Plaintiffs Nos. 1 and 2 and Defendants Nos. 4 to 8 are the landlords of the

suit building known as Memorare which is situated on 16

th

Road, Chembur,

Mumbai 400071. I have the share certificate issued by St. Anthony’s Homes Co-

operative Society Ltd., which is a co-operative society duly registered under the

Co-operative Societies Act (II of 1912). There are 5 share certificates bearing Nos.

526 to 530 issued by St. Anthony’s Homes Co-operative Society Ltd. These share

certificates pertain to the suit property. These share certificates, which stood in the

names of my parents, Leo Clement Pinto and Muriel Marie Teresa Pinto, stand in

the names of Leo Clement Pinto, Muriel M.T. Pinto, Gerard F. Pinto, Marietta M.

D’Silva, Melanie M. Pinto, Gregory J. Pinto and Melinda M. Pinto since 5

th

July

1987. I tender the said five share certificates; the same are true and correct. The

same have been issued by the society as per the rules and regulations of the Co-

operative Societies Act. The same are duly signed by the members of the Managing

Committee and the Honorary Secretary. The same may be marked as Exhibit A

colly; and the true xerox copies thereof be marked as Exhibit A-1. The original

share certificates may be ordered to be returned to me on the usual undertaking.

4.The suit premises is Flat No.2, situated on the ground floor of the suit

building. Shri Cypriano Lacerda was the tenant in respect of the suit premises. He

expired on or about 17

th

December 1969 leaving behind his widow, Virginia, and

children, as his heirs and legal representatives.

SLP(C) No.31012 of 2025 Page 7 of 25

5.The tenancy of the suit premises was then transferred from the name of

Cypriano Lacerda to the name of his widow, Virginia, on the joint request of Mrs.

Virgini Lacerda and other heirs and legal representatives of Mr. Cypriano Lacerda.

6.Mrs. Virginia Lacerda expired in Bombay on or about 18

th

March 1993,

leaving behind Defendants Nos. 1, 2 and 3 her heirs and legal representatives, were

residing with her in the suit premises as members of her family.

7.I say that possession of the suit premises is sought to be recovered from the

Defendants as the same are reasonably and bonafide required for the use and

Occupation of Plaintiffs Nos.1 and 2 and their respective families.

8.I say that my family consists of myself, my husband and two sons, viz.,

Christopher and Craig, aged 20 and 17 years respectively. Both my sons are

studying. The flat on the second floor where I am residing is of my brother, Gerard,

and he has permitted me to occupy the same temporarily. I say that the two flats on

the second floor of the suit building are of my two brothers. Flat No.5 is of Gerard

and Flat No.6 is of Gregory. Both Gerard and Gregory are at present out of

Mumbai. Gerard is at Canada and is likely to come back to Mumbai, and as such I

and my family would compelled to remove ourselves from the said premises.

9.I say that after my marriage in the year 1983, my husband and I went to

reside at Ambala. I say that I could not reside on the second floor with my parents

as there was disagreement with my parents and as such my husband and I could not

reside with them. I say that from the year 1983 till March 2001 my husband, who

was in the Indian Air Force was posted in various places, viz., Hyderabad,

Udhampur near Jammu, and also at Gandhinagar near Ahmedabad when he took

premature retirement in March 2001. I further say that on the return of my two

brothers, or either of them, to the suit building, the accommodation of Flat 5 and 6

would also be insufficient for the families to reside thereat…..

14. I require the suit premises for my own use and occupation and that of my

family. The premises where I am residing is of my mother and my two brothers,

Gerard and Gregory. Gerard, who is at present at Canada, is likely to come back to

Mumbai from Canada and as such I am my family would be compelled to remove

ourselves from the premises. Even otherwise, I and my family are unable to reside

on the second floor due to quarrels between my brother, Gerard, on the one hand

and my husband on the other. My brother, Gerard, has also been insisting that I

should not stay in the premises. I accordingly require the suit premises for my own

use and occupation and that of my family.

15. I further say that the Defendants are also liable to be evicted from the suit

premises as the Defendants have suitable other residences. Defendants Nos.1, 2

and 3 have each built, acquired or have been allotted a suitable residence. The

First Defendant has acquired a suitable residence, viz., a Flat bearing No.F-129 in

the building known as Madhuwana situated next to Indian Oil Nagar, Andheri-

Versova Road, Andheri (West), Mumbai 400 058. The Second Defendant has also

acquired a suitable residence/premises, viz., Flat No.D-82 in the said Madhuwana

building. Defendant No.3 has also acquired a flat in the said Madhuwana building.

All these flats acquired by these Defendants are suitable residential premises. I

tender photographs together with the negatives thereof, showing that the

Defendants have acquired premises at Madhuwana building. The photographs are

true and correct and I request that the same be marked as Exhibits.

SLP(C) No.31012 of 2025 Page 8 of 25

16. I also state that the Defendants have changed the user of the suit premises to

one of business. The Defendants are running tuition classes in the suit premises.

17. I say that no hardship would be caused to the Defendants for, as set out

hereinabove, each of the Defendants have acquired suitable other residential

residences/premises. I say that I and my family would continue to suffer great

hardship and inconvenience if a decree is refused to be passed against the

Defendants. I also say and submit that Plaintiff No.2 and her family would suffer

great hardship and inconvenience for she has no accommodation in Mumbai for

her residence.

18. I therefore pray that a decree in eviction be passed against the Defendants.”

16.Learned senior counsel submitted that the High Court erred in interfering

with concurrent findings on the wholly misconceived assumption that the

Appellant’s case was premised upon a ‘family partition’ whereby flat Nos.5 and

6 were allotted to her brothers and flat No.2 to her share. He argued that no such

case was ever set up. The Appellant had merely alluded in her evidence to an

amicable living arrangement among the co-landlords following the demise of

their parents. Such an arrangement did not amount to a partition, nor was any

such plea advanced.

17.He emphasised that under the family arrangement, flat Nos.5 and 6 were

understood to be earmarked for the exclusive use of the Appellant’s two

brothers, while the Suit Premises was understood to be available for the

Appellant’s exclusive use upon conclusion of the eviction proceedings.

Nevertheless, all six flats continued to be jointly owned by the Appellant and

her siblings. No division or partition had taken place and no exclusive title

vested in any individual sibling.

SLP(C) No.31012 of 2025 Page 9 of 25

18.It was further submitted that the said arrangement could not have been

pleaded in 1993, when the suit was instituted, as it had not then come into

existence. In any event, the arrangement was an internal understanding among

the co-landlords and did not concern Respondent No.1 or the other tenants. The

eviction decreed by the Courts below could not, therefore, have been set aside

by the High Court on that basis.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

19.Per contra, Mr. Prashant Shrikant Kenjale, learned counsel for the

Respondents, contended that there was a fundamental jurisdictional defect in the

Appellant’s case. He submitted that the plaint did not contain any clear or

specific pleading establishing how the Appellant had acquired the status of

landlord of the Suit Premises at the time of filing the suit. He pointed out that

the written statement categorically denied the relationship of landlord and tenant

and raised a jurisdictional objection under Section 28 of the Act. Despite this,

the Appellant sought to build her case through her affidavit of evidence by

introducing an alleged family arrangement, reliance on share certificates and

other material not pleaded in the plaint. Such a course, he argued, was

impermissible in law.

20.Learned counsel submitted that the Appellant’s locus as landlord was a

threshold issue. Once the defendants specifically denied the relationship and

title, the burden lay upon the Appellant to plead and prove clearly and

SLP(C) No.31012 of 2025 Page 10 of 25

specifically, her entitlement to sue as landlord and to receive rent. The plaint,

however, contained only a general assertion of landlordship, without pleading

any family arrangement, division of the building or transfer of the right to

receive rent in her favour. The suit, therefore, rested upon an unpleaded and

unproved assumption of landlordship.

21.Learned counsel submitted that the legal position is well settled that

evidence cannot be looked into unless it is supported by corresponding

pleadings. A party cannot be permitted to travel beyond the case pleaded in the

plaint, nor can relief be granted on the basis of a narrative introduced for the

first time in evidence. Reliance was placed on Bachhaj Nahar vs. Nilima

Mandal, (2008) 17 SCC 491, wherein this Court held that a case not pleaded

cannot be made out by evidence or submissions and relief cannot be granted on

an unpleaded foundation. Accordingly, it was contended that the Appellant’s

reliance on family arrangement, share-based allocation and derived landlordship

was impermissible, as none of these were pleaded.

22.He further submitted that the Appellant’s own cross-examination

undermined the oral theory of family arrangement as it was admitted by the

Appellant that ‘the share certificates disclose names of the co-owners and not

the flat owners.’ Thus, the share certificates pertained to the land and not to

individual flats in the building and could not establish exclusive landlordship of

the Suit Premises.

SLP(C) No.31012 of 2025 Page 11 of 25

23.Learned counsel argued that the Appellant’s reliance on subsequent

developments was equally untenable. Even if the father’s death in 1994 created

certain factual changes, such subsequent events could not retrospectively confer

landlordship in a suit filed in 1993 unless the pleadings were amended and the

change in status properly brought on record. A later event cannot be used to

manufacture original locus as the suit must stand or fall on the pleadings and

rights asserted at the time of institution.

24.On the test of bona fide requirement, it was submitted that mere

preference of the landlord is insufficient. The need must be pleaded and proved

as real as well as existing necessity and a manufactured or subsequently

improved case does not satisfy the statutory standard. In the present case, the

Appellant’s own admissions revealed that she was already in occupation of the

second floor, comprising two flats and that no decree of partition existed among

the family members. In such circumstances, the finding of the Trial Court and

Appellate Court that she alone required the Suit Premises was not based on

proper pleadings and proof, but on an unpleaded narrative. It was further

contended that each statutory ingredient under Section 13(1)(l) of the Act had

not been clearly pleaded and proved. Lastly, reliance was placed on B.R. Mehta

vs. Atma Devi, (1987) 4 SCC 183, wherein this Court emphasised that alternate

accommodation under the Rent Act is effective only if the tenant himself has

acquired or been allotted suitable premises. Allotment to a spouse or family

member is insufficient unless the tenant has a legal right thereto.

SLP(C) No.31012 of 2025 Page 12 of 25

ISSUES

25.Having heard learned counsel for the parties, this Court is of the view that

apart from questions of facts, substantial questions of law arise for consideration

in the present appeal namely what constitutes a pleading, what is the distinction

between the pleading and proof and as to whether the tests of pleading and

proof stand satisfied in the present case?

REASONING

WHAT CONSTITUTES A PLEADING?

26.‘Pleading’ denotes a formal document in which a party to a legal

proceeding sets forth or responds to allegations, claims, denials or defenses

1

.

Every pleading must contain and contain only a statement in a summary form of

the material facts on which the party pleading relies for his claim or defence, as

the case may be, but not the evidence by which they are to be proved and the

statement must be as brief as the nature of the case admits

2

. The rules

governing pleadings are not rigid absolutes but guiding principles designed to

ensure clarity and precision in framing the case.

27.Order VI Rule 1 of the Code of Civil Procedure states that pleading

means ‘Plaint or Written Statement’. A plaint is the statement of claim in

which the plaintiff sets out his cause of action with all requisite particulars. A

1 Black’s Law Dictionary Ninth Edition

2 Halsbury’s Laws of England, Fourth Edition Reissue Volume 36(1) 1999

SLP(C) No.31012 of 2025 Page 13 of 25

written statement, on the other hand, is the defendant’s response, wherein he

deals with each material fact alleged by the plaintiff and sets out any new facts

in his favour, together with such objections as he wishes to raise to the claim.

28.Order VI Rule 2(1) of the Code of Civil Procedure stipulates that:

(i)Pleadings must state facts and not law;

(ii)They must state all material facts and material facts alone i.e. facts

essential to the plaintiff’s cause of action or to the defendant’s

defence;

(iii)They must state only the facts relied upon not the evidence by

which they are to be proved; and

(iv)They must state such facts concisely with precision and certainty

so as to maintain brevity and clarity.

29.The object of pleadings is to assist the Court and the parties in the

adjudication of disputes. The intent is to provide fair notice of the opponent’s

case, to ascertain with precision the points of agreement and divergence and

thereby to bring the parties to definite issues.

30.Accordingly, pleadings of the parties form the foundation of their case as

they are the statement of facts in writing drawn up and filed in a Court by each

party stating therein what his/her contention shall be at the trial.

31.Consequently, the requisites of a good and sufficient pleading are that it

should contain (1) a statement of facts, not law, (2) material facts only, (3) facts,

not evidence and (4) facts stated in a summary form.

DISTINCTION BETWEEN PLEADING AND PROOF

32.Another fundamental rule of pleading as laid down by Order VI Rule 2 of

the Code of Civil Procedure is that every pleading must contain material facts

SLP(C) No.31012 of 2025 Page 14 of 25

but not the evidence by which those facts are to be proved. The material facts

on which a party relies are called Facta Prabanda, i.e. the facts to be proved

and they are required to be stated in the pleadings. The evidence or facts by

which Facta Probanda are to be proved are called Facta Probantia and these

are not to be included in the pleadings. Facta Probanda are not the facts in

issue rather, they are the relevant facts which, when proved at trial, establish the

facts in issue. In Virender Nath Gautam vs. Satpal Singh & Ors., (2007) 3

SCC 617, this Court has held as under:-

“50.There is distinction between facta probanda (the facts required to be

proved i.e. material facts) and facta probantia (the facts by means of which they

are proved i.e. particulars or evidence). It is settled law that pleadings must

contain only facta probanda and not facta probantia. The material facts on which

the party relies for his claim are called facta probanda and they must be stated in

the pleadings. But the facts or facts by means of which facta probanda (material

facts) are proved and which are in the nature of facta probantia (particulars or

evidence) need not be set out in the pleadings. They are not facts in issue, but only

relevant facts required to be proved at the trial in order to establish the fact in

issue.

33.Though it is settled law that no evidence can be led on a plea not raised in

the pleadings and no amount of evidence can cure a defect in pleadings, yet it is

equally well settled that facts which are merely evidence of material facts

should not themselves be pleaded.

34.Pleading and proof thus represent distinct stages in legal proceedings.

Pleading is the formal assertion of material facts with the intent to define the

case, whereas proof, by contrast, is the evidence adduced to establish those facts

as true.

SLP(C) No.31012 of 2025 Page 15 of 25

BOTH PLEADING AND PROOF ARE SUFFICIENT IN THE PRESENT SUIT

FOR EVICTION

35.This Court reiterates that the nature and extent of pleading required in a

case depends on the essence of the claim or to put it differently the type of

proceeding. For instance, there is a distinction between a pleading in a suit for

possession and eviction

3

as well as in a proceeding filed under the Code of

Civil Procedure and a writ petition under Article 226 of the Constitution

4

.

Similarly, where allegations of misrepresentation, fraud, breach of trust, wilful

default, or undue influence are made, full particulars must necessarily be set out

in the pleadings

5

.

36.It is settled law that in a suit for eviction under the State Rent Act, the

plaintiff has to plead and prove the existence of a landlord-tenant relationship

between the parties and the statutory ground for eviction under the Rent Act

6

.

37.In the plaint numbered as Rent and Eviction Suit No. 411/861 of 1996,

Appellant-Plaintiff No.1 has averred that she is a co-landlord along with her

parents and siblings. Further, the Appellant-Plaintiff No.1 in the plaint sought

3 See: Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) Thr. LRs., (2012) 5

SCC 370 and Kanaklata Das & Ors. v. Naba Kumar Das & Ors., (2018) 2 SCC 352

4 In Bharat Singh & Ors v. State of Haryana & Ors. (1988) 4 SCC 534, it has been held, “ …..there is a

distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit.

While in a pleading i.e. a plaint or a written statement, the facts and not evidence are required to be pleaded, in

a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to

be pleaded and annexed to it.”

5 Order VI Rule 4, Code of Civil Procedure, 1908.

6 In Kanaklata Das & Ors. v. Naba Kumar Das & Ors., (2018) 2 SCC 352, it has been held, “There are some

well-settled principles of law on the question involved in this appeal, which need to be taken into consideration

while deciding the question which arose in this appeal. These principles are mentioned infra:…….

11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to

enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a

relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on

which the plaintiff landlord has sought defendant tenant’s eviction under the Rent Act exists. When these two

things are proved, the eviction suit succeeds.”

SLP(C) No.31012 of 2025 Page 16 of 25

for recovery of possession of the Suit Premises from Defendant Nos.1-3 on the

grounds mentioned in the Act, namely, bona fide need, relative hardship and the

availability of alternative accommodation to the tenants.

38.Upon completion of pleadings, Appellant–Plaintiff No.1 filed her

affidavit of examination-in-chief, wherein she deposed in detail as to her status

as co-landlord and her entitlement to eviction under Section 13(1)(l) and

Section 13(1)(g) read with Section 13(2) of the Act.

39.Accordingly, this Court is of the view that the plaint did contain the

necessary and material facts essential to the Appellant’s cause of action,

asserting both her status as co-landlord and the statutory grounds for eviction.

40.Further, to prove the facts pleaded, the Appellant adduced evidence by

way of affidavit, placing on record the requirements of her family, her own

need, the family arrangement and the share certificates. These documents and

averments constituted evidence to establish the material facts pleaded and were

not required to be set out in the plaint itself. Consequently, this Court finds that

in the present case both the tests of pleading and proof stand satisfied.

WHEN ISSUE OF DEFICIENCY IN PLEADINGS CANNOT BE RAISED IN

APPEAL

41.Moreover, this Court in a catena of judgments has held that in certain

eventualities issue of deficiency in pleadings cannot be raised for the first time

in appeal. In Ram Sarup Gupta (Dead) By LRs. vs. Bishun Narain Inter

College & Ors. (1987) 2 SCC 555, it has been held, ‘whenever the question

SLP(C) No.31012 of 2025 Page 17 of 25

about lack of pleading is raised the enquiry should not be so much about the

form of the pleadings; instead, the Court must find out whether in substance the

parties knew the case and the issues upon which they went to trial. Once it is

found that in spite of deficiency in the pleadings parties knew the case and they

proceeded to trial on those issues by producing evidence, in that event it would

not be open to a party to raise the question of absence of pleadings in appeal.’

In a similar vein, this Court in Bachhaj Nahar vs. Nilima Mandal & Anr.,

(2008) 17 SCC 491 has reiterated the said principle in the following terms:-

“17. It is thus clear that a case not specifically pleaded can be considered by the

court only where the pleadings in substance, though not in specific terms, contain

the necessary averments to make out a particular case and the issues framed also

generally cover the question involved and the parties proceed on the basis that

such case was at issue and had led evidence thereon. As the very requirements

indicate, this should be only in exceptional cases where the court is fully satisfied

that the pleadings and issues generally cover the case subsequently put forward

and that the parties being conscious of the issue, had led evidence on such issue.

But where the court is not satisfied that such case was at issue, the question of

resorting to the exception to the general rule does not arise……”

SHARE CERTIFICATE IS OF BOTH LAND AND BUILDING

42.Section 8 of the Transfer of Property Act, 1882 stipulates that upon

transfer of property all the interest passes to the transferee which the transferor

is then capable of passing in the property and in the legal incidents thereof, and

where the property is land it would include all things attached to earth.

7

Things

attached to the earth means things embedded in earth, as in the case of walls or

buildings.

8

Consequently, unless a contrary intention appears in the instrument

of transfer, an interest in land necessarily implies an interest in the building

7 Section 8, Transfer of Property Act, 1882.

8 Section 3, Transfer of Property Act, 1882.

SLP(C) No.31012 of 2025 Page 18 of 25

situated thereon. It was not the defendants’ case that the Suit Building was

constructed or owned by a third party. On the contrary, DW-1, in his

examination-in-chief, unequivocally admitted that the Suit Building had been

constructed by the father of the Appellant.

43.It is admitted that the share certificates for the land stand in the names of

all co-owners, including the Appellant. In her examination-in-chief, the

Appellant deposed that the certificates were originally issued in the names of

her parents and were subsequently transferred, on 5th July 1987, in favour of

the Appellant and her siblings. This part of her deposition remained

unchallenged in cross-examination.

44.Consequently, this Court holds that the Appellant has conclusively proved

that, at the time of filing the suit, she was a holder of the share certificates, had

an interest in the land and was a co-owner of the Suit Building.

APPELLANT WAS A CO-LANDLORD ON THE DATE OF FILING OF SUIT

45.Section 5(3) of the Act defines landlord as ‘any person who is for the

time being, receiving, or entitled to receive, rent in respect of any premises

whether on his own account or on account, or on behalf, or for the benefit of

any other person or….’

46.In light of this definition, this Court is of the view that the Appellant,

being the co-owner of the suit building was entitled to receive rent and thus fell

squarely within the statutory definition of ‘landlord’ under the Act. Also, the

Appellant in her cross-examination had deposed that the Appellant is receiving

SLP(C) No.31012 of 2025 Page 19 of 25

rent on behalf of her mother. Consequently, this Court is of the view that at the

time of filing of the suit, the Appellant was a co-landlord as well as co-owner

of the suit building and even if there was deficiency in the pleadings, parties

knew the case and they proceeded to trial by producing evidence.

COURTS CAN IN CERTAIN CIRCUMSTANCES TAKE INTO ACCOUNT

SUBSEQUENT EVENTS

47.Though, the right to relief is normally to be judged as on the date the

proceeding is instituted, yet it is equally well settled that the Court can take

cautious cognisance of events and developments subsequent to the institution of

the proceedings, provided the rules of fairness to both sides are scrupulously

observed. Justice Krishna Iyer in his inimitable style in Pasupuleti

Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770 has

observed as under:-

…..We affirm the proposition that for making the right or remedy claimed by the

party just and meaningful as also legally and factually in accord with the

current realities, the Court can, and in many cases must, take cautious

cognisance of events and developments subsequent to the institution of the

proceeding provided the rules of fairness to both sides are scrupulously

obeyed…..”

48.Recently a coordinate Bench of this Court in Vinay Raghunath

Deshmukh vs. Natwarlal Shamji Gada & Anr., 2026 INSC 416 has reiterated

the aforesaid principle.

ORAL FAMILY ARRANGEMENT/SETTLEMENT CAN BE RELIED UPON

49.It is further settled law that a family arrangement can be entered into even

by way of an unregistered oral agreement

9

and such family settlements are

9 Kale & Ors. vs. Deputy Director of Consolidation & Ors., (1976) 3 SCC 119

SLP(C) No.31012 of 2025 Page 20 of 25

enforced by Courts as they are governed by special equity principles. This

Court in Hari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.,

(2006) 4 SCC 658, following the judgment in K.K. Modi vs. K.N. Modi & Ors.

10

has held, ‘…. in our opinion, technical considerations should give way to peace

and harmony in the enforcement of family arrangements or settlements.’

50. Consequently, the Appellant is entitled to rely upon the oral family

arrangement/settlement, as deposed in her affidavit of examination-in-chief

even in absence of a decree of partition between herself and her siblings, as it

represents a subsequent development.

APPELLANT HAS SUCCESSFULLY PROVED HER BONA FIDE NEED

51.With respect to the Appellant-Plaintiff No.1’s bona fide need, Appellant

has pleaded and deposed in her examination-in-chief that her parents were

occupying flat Nos.5 & 6 available to the family and that her husband did not

get along with her parents and that the Appellant/Plaintiff No.1 has no other

premise for her use at Mumbai and that her family includes two children whose

education was adversely affected by her husband’s frequent transfers. Further,

the only flats available with the landlord family at the time of filing the suit i.e.

flat Nos. 5 and 6 were insufficient to accommodate the Appellant, her husband

and two children, her aged parents (both alive at the time of suit), as well as her

two brothers with their respective families.

10 (1998) 3 SCC 573

SLP(C) No.31012 of 2025 Page 21 of 25

52.It is settled law that a tenant cannot dictate to the landlord the suitability

of the tenanted premises, nor insist that the landlord utilise some other property.

53.Additionally, this Court is of the opinion that Appellant-Plaintiff No.1’s

temporary co-occupation of flats No. 5 & 6 during the pendency of the eviction

suit and after passing away of her father in 1994 cannot negate her bona fide

need for the Suit Premises. The said flats were insufficient to accommodate the

entire family of the Appellant and those of her brothers, particularly in light of

the family arrangement/settlement.

COMPARATIVE HARDSHIP

54.It is pertinent to note that the Suit Premises is situated in a building

co-owned by the Appellant’s family, comprising six flats. At the time of filing

the suit, only flat Nos.5 and 6 were available to the landlord family, which then

consisted of the Appellant, her four adult siblings, their two aged parents and

the spouses and children of each sibling. The remaining four flats, including the

Suit Premises, were occupied by tenants.

55.The availability of alternative accommodation could not have been

assessed with reference to Mrs. Virginia Lacerda, who had passed away three

months prior to the institution of the suit. Her three adult children, Defendant

Nos.1 to 3, had succeeded to the tenancy. For the purposes of Section 13(1)(l) of

the Act, it was sufficient for the Appellant to establish that these tenants had

SLP(C) No.31012 of 2025 Page 22 of 25

alternative accommodation available to them (Suresh @ Suryakant

Ramchandra Chonkar v. Bhikaji Bhagwat Redkar, 2008 SCC OnLine Bom

1156).

56.On the date of filing the suit, alternative accommodations were indeed

available to each of the original defendants. Defendant No.1 owned flat No.

F-129 in Madhuvana Society. Defendant No.2 owned flat No. D-82 in the same

society since 1976, which was initially occupied by Defendant No.3. In 2002,

during the pendency of the suit, Defendant No.2 sold the said flat for Rs.12

lakhs and the proceeds were utilised to purchase another flat in Borivali,

Mumbai, which was occupied by Defendant No.3. The contention that alternate

accommodation under the Rent Act is effective only if the tenant himself has

acquired or been allotted suitable premises is contrary to the facts of the present

case. The evidence demonstrates that Defendant No.3 was and continues to be

in occupation of one of the flats owned by the defendants. No evidence was led

to show that Defendant Nos.1 and 2 could not reside with Defendant No.3.

Accordingly, the judgment in B.R. Mehta (supra) does not assist the

respondents.

57.Additionally, the conduct of Defendant No.2 in selling his alternative

accommodation during the pendency of the suit indicates that the sale was

effected only to avoid a decree of eviction. Even considering subsequent events,

the Appellant’s hardship is demonstrably greater than that of the respondents.

SLP(C) No.31012 of 2025 Page 23 of 25

The Appellant continues to have no accommodation in Mumbai, while her

brothers (Respondent Nos.4 and 6 herein) have taken exclusive control of flat

Nos.5 and 6, rendering them unavailable for her use.

58.Furthermore, the original contesting tenants, Defendant Nos.1 and 2, are

no longer alive. Defendant No.2 remained unmarried and left no heirs.

Defendant No.3 continues to occupy a separate flat. Respondent No.1, son of

Defendant No.1, resides and works in Pune, where he owns property, while his

wife resides in Norway. He has no genuine need for a flat in Chembur, Mumbai.

59.In these circumstances, Respondent No.1’s assertion that he might apply

for a better job in Mumbai if affordable accommodation were available cannot

be accepted. He holds stable employment with L&T Infotech in Pune and owns

property there, evidencing his long-term intention to remain in Pune.

60.Consequently, this Court holds that, in light of the tenants’ acquisition of

alternative accommodation, greater hardship would be caused to the Appellant

if eviction were denied. The Appellant, despite being the landlord and in bona

fide need of accommodation for herself and her family, would otherwise be

compelled to purchase or rent another premises.

CONCLUSION

61.Keeping in view the aforesaid, the present appeal is allowed and the

impugned judgment and order dated 23

rd

June 2025 passed by the High Court of

SLP(C) No.31012 of 2025 Page 24 of 25

Bombay in Civil Revision Application No. 308 of 2019 is set aside and the

judgment and decree dated 14

th

September 2007 passed by Small Causes Court

at Bombay in Rent and Eviction Suit No. 411/861 of 1996 is restored.

62.Pending applications, if any, shall stand disposed of.

……………………J.

[MANOJ MISRA]

…………………J.

[MANMOHAN]

New Delhi;

May 15, 2026

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